Prof. Andrew Koppelman (Northwestern) on TrapHouseGate in The Hill

Another very good column, from one of the leading liberal constitutional law scholars. Glad people are talking about this.

Comments

[Cal Cetín]

"In contemporary parlance, “racist” has two distinctive definitions. One, the more familiar, subjective one, describes a person who consciously embraces an ideology of white supremacy. But another, newer meaning describes any speech or conduct that, intentionally or unintentionally, has the objective effect of promoting the institutions that tend to subordinate Black people. (Set aside that reasonable people often disagree about whether a given statement or action has that effect.)

"The most innocent possible explanation for the use of the term in Eldik and Cosgrove’s message to the students would cite the second, objective meaning. (The subjective one would have been actionably defamatory.) The epithet “racist” was applied to the language, not its author."

Perhaps someone - maybe a 1st Amendment expert - could tell us: Is there enough here to go to a jury?

[bernard11]

I see three meanings here.

I wouldn't lump "intentionally" and "unintentionally" together, and I wouldn't call unintentional acts racist, even though they might fairly be called racially discriminatory.

The trouble is that "racist" is charged term, and thus gets people's backs up. If you want to convince someone that something they did or said has racial effects or implications then telling them they are no better than Bull Connor isn't going to help your case. And it's not accurate either.

[Rev. Arthur L. Kirkland]

"Intentional" or "unintentional?" Offering fried chicken at a Federalist Society-sponsored trap house is what it is.

Would a similar lineup in the context of Orthodox Jews, Catholics, West Virginians, other Jews, or evangelicals (with a protagonist similar to the Federalist Society) provoke a different reaction among clingers?

[Brett Bellmore]

"and I wouldn’t call unintentional acts racist, even though they might fairly be called racially discriminatory."

Wouldn't an unintentional racist act have to be facially racist, since there's no intent to make it racist?

[Don Nico]

Let's face it Bernard, if Colbert were not Native American, he'd be out on his ass. The Yale Administration has shown itself to be as racist as they come.

[Rev. Arthur L. Kirkland]

As racist as fried chicken at a Federalist Society trap house?

[Rev. Arthur L. Kirkland]

This evokes the 'good old days' of the Volokh Conspiracy, when people claimed that birthers weren't racist, that Republican e-mails of Pres. Obama with a bone through his nose weren't racist, and that Republican e-mails of Pres. Obama chasing a bucket of fried chicken weren't racist.

Because, you know, Democrats are the real racists.

[TwelveInchPianist]

"As racist as fried chicken at a Federalist Society trap house?"

Do you eat fried chicken, Arthur?

[Rev. Arthur L. Kirkland]

Yes, but, unlike Republicans, I do not circulate emails showing Black persons, such as former Pres. Obama, chasing buckets of fried chicken or slices of watermelon.

Of course, I have a head start toward decency in this regard, because my political party neither inclines nor requires that I be a racist or appease racists.

Can you apprehend these distinctions, clinger?

[perlhaqr]

Metastasized gall bladders consume only hatred to further their bile production and rape fantasies.

[Sarcastr0]

While I'm sure you're confident in that analysis, don't try for proof by counterfactual.

Plenty of examples of the following trajectory.

1) student submits dumbass complaint about 'problematic behavior'
2) administration is by rule obligated to take all such complaints seriously
3) conservatives get ahold of story; rant about canceling
4) accused party is cleared of wrongdoing
5) conservatives forget to publish this last update

So while I know where you got the picture in your head, I'm not sure you're at all right about the assured cancellation of Colbert at all.

[bevis the lumberjack]

Does “take all such complaints seriously” extend to threatening the subject of the complaint with possible career ruin? Does it extend to sending out an email describing how racist the subject is without any explanation?

They went beyond taking it seriously. They chose a side before even talking to the subject.

[Sarcastr0]

I'm not saying Yale covered itself in glory here, I'm challenging the general presumption that were Colbert not a minority he'd have been cancelled for sure.

[Gandydancer]

The diversity bigot said as much, in his typically mealy-mouthed way.

~ "If you were white you'd REALLY be in trouble."

And you of course evaded responding to the observation that the Assistant Dean dick went beyond pretending to take the allegations seriously to sending a lying email endorsing the complaint to all Coulter's classmates.

[IPLawyer]

Have you been to law school? Any disciplinary action is going to involve the school pointing out to you that you will ahve to pass thru character and fitness... it's not a threat, it's a reminder that the legal profession has obligations to it that might preclude being openly racist.

[Gandydancer]

Yale of course denies having contemplated "disciplinary action", so thanks for admitting that they are lying.

[David Nieporent]

Seems like one of the big problems arises in step #2. This isn't a court; there can and ought to be a screening mechanism. An administrator ought to be able to look at a complaint and say, "This is dumbass; we're filing it in the circular file." (I mean, say that to themselves; to the complainant, they ought to be a bit more diplomatic.)

But your description kind of whitewashes (no pun intended) what happened here. It wasn't merely that they were obligated to take the complaint seriously, but that they treated it as valid.

[Cal Cetín]

I'm particularly interested in whether there's enough factual dispute to call upon a jury to resolve it.

[Stephen Lathrop]

Problem is, Bernard, that many folks are heedless of structural, built-in discriminatory effects. Those folks seem to find it impossible to notice what they do not wish to see. Not sure there is any way to convince many of them to care about abiding disadvantages experienced by Blacks. It seems the best to hope for is some means to de-norm that attitude, and that probably does include calling it out publicly as objectively racist.

One way to get ready for that may be to point out that the, "-ism," on the end of, "racism," denotes system. Then contrast two kinds of racist conduct, distinguishing them by whether their effects are broadly systematic, or more narrowly personal.

The second kind is the classic, hatred-in-your-heart kind of racism. When recognizing that, it can be helpful to notice that it need not imply moral culpability. Some folks who grew up in overtly racist social settings struggled as youngsters against ubiquitous assertions of false evidence. Those made bigotry normative, and especially to youngsters, apparently explainable as justified in fact. Among those, some in adulthood have judged themselves as morally culpable, but retain habitually the beliefs in which they were raised. Some may struggle against those beliefs, sometimes successfully, sometimes only partially successfully. Either way, such people are unlikely to become crusaders against racism, but they do tend to be less supportive of the systematic part, which is what makes racism an effective evil throughout society. That kind of racism can become instead a private, inward, and mostly-personal struggle, which many such people tend to experience as sin. I suggest that people of that sort are not only not evil, but can be morally creditable. It is wrong to target for public criticism people with that kind of history.

To avoid that kind of targeting, it becomes important to look again at the distinction between moral sin, and practical, systematic support for racially structured social systems, of the kind which inflict or maintain damaging disadvantages for Blacks. That latter more-systematized framing is what does most of the actual social damage. Systematized and systematically-supported racism is the kind which our nation is most challenged by, and which ought to worry us the most.

Perversely, many of the folks who back those systems do so for reasons they believe in—reasons which were never taught as overtly racist, but instead vigorously justified as social virtues—from family values, to free enterprise, to fiscal conservatism, to meritocracy, to wise urban planning, etc. There is always some virtuous goal in the foreground, even if behind the goal there continues a kind of systematized disadvantaging—disadvantaging which time after time falls, for some reason, on the same group, who happen to be racially identifiable descendants of enslaved Americans.

That behind-the-foreground systematized racism continues nearly full-strength in today's public advocacy. It requires no hatred in the heart to keep it going. Many people—especially politicians—who genuinely reject the sinful, bigoted, old-fashioned racism, feel entirely comfortable embracing the modern systematized version. All it requires to do it is heedlessness of the conditions those systems inflict on Blacks. So heedlessness is what today's systematic racists practice, and heedlessness they fiercely defend. Because those systems work for them. And they get to do it with conviction, in the knowledge that they genuinely reject the hatred-in-the-heart kind of old-fashioned bigotry.

Advocates of those kinds of, "virtues," are insistent in rejecting any connection between values they cherish, and disadvantages those values may inflict systematically on Blacks. That is a trap set by history. It ensnares tens of millions of whites, the successful and less-successful alike. It could not be more obvious that that kind of systematized racism—powered by a heedless conviction of unassailable virtue—cannot be ameliorated by opponents who are afraid even to call it racist. It is the very essence of racism—the cheerful, assured, systematic kind, not the merely sinful kind.

[Brett Bellmore]

"Perversely, many of the folks who back those systems do so for reasons they believe in—reasons which were never taught as overtly racist, but instead vigorously justified as social virtues—from family values, to free enterprise, to fiscal conservatism, to meritocracy, to wise urban planning, etc. "

Whoa, you've really been guzzling the Koolaid, haven't you? You've actually joined the "traditional values are racist" crew?

That attitude DOOMS the underclass, because traditional values are actually the only path out of poverty. Study hard, work hard, don't have kids out of wedlock. It's the only reliable recipe for success if you're not already connected.

[shawn_dude]

What do those values lead to though?
Don't have kids out of wedlock
-Anti-birth control and anti-abortion laws
-Punishing unwed mothers and driving them and their children into poverty
-Reductions in social safety nets due to immoral behaviors that presumably create the need for such help

Work Hard
-hard work is virtuous and leads to financial success! Poverty means a lack of hard work (or hard studying) and a lack of moral character
- Reductions in social safety nets for lack of moral character. Those people are just lazy welfare queens!
-Financial success is earned by embracing traditional values and working hard. You earned everything on your own and shouldn't be taxed to pay for people without proper values
-Therefore, schools should be funded by property taxes and those with hard earned value-rich cash should have better schools than those who have no values at all

Study Hard
- see schools funded by local property taxes to keep the rich kids rich and the poor kids poor because "values"
- see schools refusing poor children lunches because their parents cannot afford to feed their children

Other Traditional Values(tm) you failed to list.
- Marriage is for one man and one woman
- Gender roles are sacrosanct (this includes homosexuality as abomination, transgenderism as mental illness, opposition to the ERA, etc)
- Patriotism is obligatory (never criticize the military, especially as it relates to enforced gender roles, sexual abuse, etc)
- Immigration on foot across the southern border is an emergency (It's not about their skin color, mind you, just the fact that they won't stay in their own countries.)
- The US is a Christian nation and obliged to follow God's laws, regardless of personal religious belief
- Abstinence from recreational substances, especially drugs and alcohol (see: stiffer penalties for drugs Black and poor Americans consume versus rich white Americans like crack/weed vs cocaine. The "war on drugs" which ended up placing a lot of Black men behind bars.)

Traditional Values(tm) lines up directly with Stephen's point. It's almost as if he had that in mind when writing his piece above.

[Brett Bellmore]

"What do those values lead to though?"

Statistically? Success in life.

"Don’t have kids out of wedlock.
Don't hook up and count on birth control and infanticide to spare you the consequences. Neither comes free, and you may very well find that, when you get pregnant, you won't be able to bring yourself to kill your baby.

Work Hard
Yup, being lazy actually does correlate with poverty, though there are occasional exceptions, they ARE exceptions, not the rule. That being lazy may lead to a hard life is just poetic irony.

Study Hard
Children in poor neighborhoods with lousy schools who study hard leave those neighborhoods for better lives. Children in good neighborhoods with great schools fail in life if they don't take advantage of them.

Really, you are SO desperate to deny that the lives we live are mostly a product of the choices we make.

[IPLawyer]

And you are so desperate to pretend that everything is under your control

[Brett Bellmore]

Do you understand the difference between "everything" and "mostly"?

[Gandydancer]

Not when it advances your argument and not his.

[Randal]

I sort of have to agree with Brett here. Take the meritocracy example. I understand the arguments that meritocracies a) can be abused by the decision-makers and b) tend to lock-in more opportunities going to those who already had an easier time getting ahead. But neither of those is a reason to reject meritocracy outright. Those problems can be addressed individually, without disparaging meritocracy as a value.

The same goes for the other values you mentioned.

Throwing meritocracy and other American values out with the bathwater feels like a tricky way to push a (socialist?) political agenda more than a response to systemic racism.

[shawn_dude]

There aren't any "American Values" that we'd all agree on beyond some super-vague platitudes. And the issue isn't the values but how they're used to justify systemic racism.

The very idea that we have to have a single set of values is largely anti-American given that our values will vary based on our diverse faiths, states, education, economic status, etc. At one point in time, I'd have though we could agree on at least making voting as easy and available as possible, but I've been proven wrong about that.

[Randal]

I agree, the issue isn't the values, it's how they're used. So why are we disparaging the values, or even talking about them?

I would suppose that even if we got rid of the values, the people bent on enacting racism would find other ways to justify it.

So again, the focus on trying to damage these values within society seems transparently to be about advancing a political agenda and not actually about racism at all. It's using the existence of disparate racial impact to justify socialism.

Maybe you think values like meritocracy are un-American, which is fine, but then just say that. Don't hide behind racism as the justification, because it doesn't work.

[Cal Cetín]

"It ensnares tens of millions of whites...cannot be ameliorated by opponents who are afraid even to call it racist."

Why not do what they did to draft dodgers during wartime, and go up to people on the street and pin yellow feathers on them?

Better yet, pin yellow stars marked "R" on their clothing.

This not only has the advantage of properly stigmatizing the racists, it also proves your own courage and shows that you have the guts to confront racists to their face and face the risk of physical retaliation.

[Cal Cetín]

Or is it white feathers?

Anyway, have the courage to back up your assertions by physical confrontations - not only with squishy liberals who will masochistically thank you for calling out their privilege, but white bikers and other undesirables who never previously had the benefit of being confronted on their racism precisely because the anti-racism activists were too timid to risk bruises, dental damage, etc.

Be bold! Be fearless! Remember, any injuries you sustain in the cause of fighting racism will count in your favor in the Kingdom of Heaven.

[Nige]

'You have to be sensitive to the people causing you or subjecting you to racial discrimination' is some civility bullshit, though. No amount of sensitivity is going to stop people's backs being gotten up when someone tells them they're being discriminatory, and it puts the burden on the victim to be responsible for moderating the discriminator's response while also moderating their own. So, it the discrimantor's response is one of disproportionate outrage, anger, offence, whatever, it's the always victim's fault. Surely the victim of discrimination has more right to be angry and for their backs to be up than the person responsible for the discrimination.

[David Nieporent]

You might want to look up "begging the question" in the dictionary.

[Brett Bellmore]

The thing is: Doesn't whether something is "objective" or not have something to do with whether reasonable people will disagree? So I see a little bit of a contradiction there.

[Longtobefree]

The only definition of racist is 'someone who judges people by the color of their skin'.

[Gandydancer]

You're leaving out the information that precedes the above quote:

That evening, Eldik and Cosgrove emailed the entire second-year class. "[A]n invitation was recently circulated containing pejorative and racist language. We condemn this in the strongest possible terms"

So, no, the Cosgrove email was defamation, as well as a lie, not an "objective" description of the "objective" content of the invitation.

[Rev. Arthur L. Kirkland]

" Glad people are talking about this. "

Mostly because it diverts attention from the Judge Pryor/Crystal Clanton issue?

[Don Nico]

No, fool. Because it is an act of wanton racism against a Native American.

[Rev. Arthur L. Kirkland]

That's what you figure Prof. Volokh intended with his comment?

[Gandydancer]

The "against a Native American" bit is Don Nico's mania speaking.

That the mistreatment of Coulter is worse b/c he's not White is a bizarre concession to Woke sensibilities.

On the other hand, the Pryor/Clanton "issue" isn't, unlike the abuse of Coulter, anything anyone ought to pay attention to until you get better proof that the tweet even exists than is provided by the New Yorker article.

I ignored your YouTube video again. It's a moronic twitch that you have there.

[Rev. Arthur L. Kirkland]

" On the other hand, the Pryor/Clanton “issue” isn’t . . . anything anyone ought to pay attention to "

The Volokh Conspiracy certainly agrees with that point!

Which explains why the Volokh Conspiracy operates at the disaffected, obsolete fringe of modern America legal academia.

[y81]

Koppelman's analysis is incoherent (and therefore not "very good"; in fact not worth reading). How did the use of the phrase "trap house" have the objective effect of perpetuating the institutions that subordinate black people? Who (other than the Federalist Society members and native Americans who have been denounced and reviled by Koppelman's comrades in the Yale administration) has been objectively subordinated? He doesn't explain that, because in fact his only metric is what Ruth Marcus describes, the complaints of the grievance culture.

[Gandydancer]

Yes, Koppelman’s article is pretty egregious. At least he left out the cringing (and cringe-worthy) bit about his happiness at seeing tampons in the Mens bathrooms that he used in his first excretion on this subject to establish his Woke bonfides. But somehow the abuse of the student by the admins is still only a "mistake" and the higher ups at Yale (President, Dean, etc.) get a pass for complaining about twitter mobs supposedly abusing the malefactors instead of coming down hard on the diversity apparatchiks who abused Coulter.

[Brett Bellmore]

I actually contacted him about that bit, to ask him if he'd written it out of fear that, if he'd not prefaced that essay with it, he'd have been a target himself.

No, he assured me, he really did feel that way. Amazing. And sad. Because, for a left-winger Koppleman is actually kind of sane. If he's gone around that bend, the people who started out cracked must be gibbering madmen by now.

[Gandydancer]

I don't mid the bonafides virtue-signalling so much as the "mistake" bit. The idea that the diversity ideologues just kinda misspoke is gaslighting. Or do you think he thinks that, too?

[Eric VonSalzen]

"Colbert made clear that he hadn’t known the racial coding of 'trap house,' and didn’t even select the menu. Had this promptly been conveyed to the complainants, the problem might have evaporated." In what world? Not the world of the 21st Century American academy.

[Gandydancer]

Koppelmann is here oblivious to the fact that the "problem" is Associate Dean Ellen Cosgrove and diversity director Yaseen Eldik, not the whining of affirmative action grifters like the head of the Black Law Student Association. And that their being exposed by their egregious behavior is a GOOD thing.

[Doug Heffernan]

On Saturday morning, the smercommish guy pilloried his viewers on cnn for not supporting the rights of the traphouse kid.

https://www.cnn.com/videos/politics/2021/10/23/smerconish-canceling-cancel-culture.cnn

[Gandydancer]

I guess hes less obnoxious than the fully Woke, but he's pretty weak on the idea that any of the cancelling he talks about is actually wrong to do. He's only worried that it causes a backlash.

I hadn't heard before about the UC Berkeley guy getting pushed out for supporting Abbot, but I see there's a Reason article on it: https://reason.com/volokh/2021/10/19/head-of-berkeley-atmospheric-science-center-resigns-directorship-to-prtest-refusal-to-invite-dorrian-abbot/

[DaivdBehar]

Zero tolerance for woke. All woke is CCP. Rescind the tax exemption of Yale. Stop all funds, grants, subsidies. Shut down Yale. Its alums have been severely toxic to this country. Seize its assets.

[Doug Heffernan]

Zero tolerance, that's the right idea! Cancel the cancellers! That'll learn'em!

Designate the group as woke/CCP, and cancel them for the good of the country!

Righteous cancelling is a totally different thing from whatever they are doing. That's why they should also have their assets seized as well. That's the only way to deal with their toxicity!

[Gandydancer]

Show me that it's not an existential struggle.

[apedad]

1. You can't prove a negative.

2. Democracy IS a struggle - and that's a feature not a bug.

We have the longest form of government PRECISELY because of the constant, continuous struggle.

And as we've seen over the past 240+ years bad ideas eventually die (slavery, women can't vote, etc.), and we slowly make progress.

[Gandydancer]

You can indeed prove negatives.

I said "existential struggle", not "struggle".

I do not share your faith in progress.

I look around and things are going to hell.

[Brett Bellmore]

Hopefully just purgatory. (The difference being the potential of things eventually getting better.)

[apedad]

Go ahead and prove a negative - you'll be the first and instantly famous.

And as far as seeing things going to hell, that's because you're on the losing side.

[Gandydancer]

So. you're on the side of anarcho-tyranny.

But you haven't won yet.

You're not even going to win the next election. You side is making such a hash of things that it won't be close enough to steal.

Buit, to return to the sentiments of the op, the Constitution, especially the fake one we're being stuck with, is not a suicide pact. Come the day we need to shoot you and your ilk it won't trouble me to do so. You are, like Nazui soldiers, no compatriots of mine.

[Brett Bellmore]

"There are no prime numbers between 15,683 and 19,609."

Think I can't prove it?

[Gandydancer]

"Go ahead and prove a negative - you'll be the first and instantly famous."

Your ignorance is remarkable and tremendous. But here goes...

The Pythagorean Theorem is of the form a + b = n.

Proving it proves an infinity of negatives, not least the infinity of propositions a + b /= n + i where i is any nonzero number.

There are many so-far unprovable mathematical hypotheses where the ONLY thing you can prove is negatives.

[Michael P]

The left does like to say that society can tolerate anyone except the intolerant (ignoring most of what Karl Popper actually wrote on the topic).

[Randal]

I really don't think Andrew knows what "objective" and "subjective" mean. To the extent they make any sense in the context he's using them, he got them backwards.

[Cal Cetín]

From the linked article (once again):

"another, newer meaning [of racism] describes any speech or conduct that, intentionally or unintentionally, has the objective effect of promoting the institutions that tend to subordinate Black people. (Set aside that reasonable people often disagree about whether a given statement or action has that effect.)"

No, don't set that aside at all.

Let's look at

-Policies which assign black children to bad schools and won't give them the money they need transfer to a better school, even though the person in question generally supports spending "for the children."

-Revolving door prisons, riots and disorder which lead to emboldening criminals and increasing the rate of crimes committed against people of color.

-Abortion of babies of color

-Encouraging fatherlessness, and the consequent criminalization of the directionless young men and boys who are raised in that climate

-Gun policies historically aimed at disarming racial minorities while the advocates of those policies safely repose in their gated communities protected by armed guards

-Mocking useful and productive habits as "white" and wrong

Do you wish you hadn't opened up the "institutional racism" can of worms?

[Ben_]

You know "institutional racism" is just an attack vector, right? They don’t actually believe that institutions should be less racist, they believe that institutions should be under their governance and help them and financially reward them. Once institutions are in their hands, you’re supposed to shut up and let them do whatever they want. If (when) institutions have failings under their control, they’ll say some words and (if you know what’s good for you) that will be the end of talking about it.

[IPLawyer]

I can't believe people believe this sort of moronic horseshit, but people post this kind of crap every day here.

[Randal]

Ben_ appears to have forgotten the syllables of his own name beyond the first. He's definitely one of the slow kids at play.

[Gandydancer]

Ben is right and your moronic horseshit denials are of a piece with everything else you write.

E.g., Ben is perfectly describing the lying Loudoun County School Superintendent if you substitute "anti-tranny" for "racist".

[Ben_]

Andrew Koppelman makes a bid to be eaten last.

Someone tell him that the sun set on any chance of moderation when Obama became President and there was a need to defend his administration's missteps. Everyone who wasn't applauding Obama 24/7 was labeled a white supremacist. I imagine it will be sad for Andrew Koppelman when he gets labeled a white supremacist and denounced and cancelled.

[IPLawyer]

It's a wonder how you get your breakfast cereal from the bowl into your mouth every morning. yet you are here posting, again.

[Gandydancer]

I never have to wonder why you find it so hard to pull your head iout of your ass because you never even try.